WT/DS383/R 
 Page B-1 
 
 
  ANNEX B 
 
 
THIRD PARTIES WRITTEN SU BMISSIONS OR EXECUTIVE 
SUMMARIES THEREOF 
 
 
Contents Page 
Annex B-1 Third Party Written Submissi on of the European Communities B-2 
Annex B-2 Third Party Written Submission of Japan B-5 
Annex B-3 Executive Summary of the Third Party Written Submission of 
Argentina B-6 
 WT/DS383/R 
Page B-2  
 
  ANNEX B-1 
 
 
THIRD PARTY WRITTEN SUBMISSION OF 
THE EUROPEAN COMMUNITIES 
 
 
1. The European Communities makes this third party written submission because of its systemic 
interest in the correct and consiste nt interpretation and application of, inter alia , the Agreement on 
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994  (the "Anti-
Dumping Agreement") and the Dispute Settlement Understanding  ("DSU").   
 2. At the outset, the European Communities observes that there are many similarities between 
the present dispute and the issue confronted by the panels in US – Shrimp (Ecuador)  and US – 
Shrimp (Thailand) .  In those disputes, the complaining party challenged the conformity of an anti-
dumping order adopted by the United States on the basis that the methodology used to calculate the dumping margins of the exporters concerned (" model zeroing") infringed Article 2.4.2 of the Anti-
Dumping Agreement  for the reasons contained in the report of the Appellate Body in US – Softwood 
Lumber V .  In those disputes, the United States refrained from contesting that legal claim and even 
agreed with the complaining party on the means and timing of the implementation of the adopted 
DSB report.    3. In the present dispute, the Agreement on Procedures between Thailand and the United States
1 
contains paragraphs by which the Parties agree on th e procedures that are to govern certain aspects of 
the Panel proceedings.  It also contains paragraphs  by which the Parties agree that the United States 
will not contest the claim;  Thailand will not request  the Panel to suggest, pursuant to Article 19.1 of 
the DSU , ways in which the United States could impl ement the Panel's reco mmendations;  and by 
which the manner and timing of implementation are agreed.2  Thus, in the EC view, the Agreement on 
Procedures  not only resolves certain procedural issues, it also represents, at least in part, a resolution 
or solution of the dispute between the Parties.  However, neither Party refers in its First Written 
Submission to Articles 3.6 or 12.7 of the DSU .   
 4. In the particular factual circumstances of the present case, th e European Communities 
welcomes the prompt resolution of the dispute and does not object to the manner of proceeding 
chosen by the Parties.  However, the European Co mmunities considers that the ability of parties to a 
dispute to agree on certain matters and to then ha ve such agreement translated into findings and 
recommendations of a panel which are eventually ad opted by the DSB is not unlimited.  The manner 
of proceeding chosen by the Parti es cannot affect the rights of WTO Members which are not parties to 
                                                     
 
1 Exhibit THA-8.   
2 The Parties have agreed that an y change in the cash deposit rate or revocation of the anti-dumping 
order as a result of the recalculation of dumping margins pursuant to a Section 129 determination will take effect with respect to "entries made no sonner than the date [of implementation of the new determination]" 
(Agreement on Procedures , para. 6).  In this respect, the European Communities observes that the US 
obligations resulting from the Agreement on Procedures  would appear to be far more limited than the US 
obligations resulting from identical violations found in other disputes.  Indeed, the Appellate Body has twice 
rejected the relevance of the "date of  entry" for the purpose of assessing  compliance with adopted DSB reports 
(Appellate Body Report, US – Zeroing (Article 21.5 – EC)  para. 309, and Appellate Body Report, US – Zeroing 
(Article 21.5 – Japan) , para. 169).  Thus, in the EC view, as all mutually agreed solutions shall be consistent 
with the covered agreements and shall not nullify or impair benefits accruing to any Member under those 
agreements (Article 3.5 of the DSU ), any agreement between the Parties on implementation cannot alter the 
consequences of a recommendation pursuant to Article 19.1 of the DSU , i.e., to bring the measure into full 
conformity with the covered agreements.    WT/DS383/R 
 Page B-3 
 
 
  the Agreement on Procedures3;  nor can the approach chosen by the Parties seek to obtain findings 
having equal weight in practice vis-à-vis  other WTO Members as a "conventional" panel report.   
 5. Under these circumstances, Article 11 of the DSU  gains special relevance.  Notwithstanding 
the absence of disagreement between the parties, a panel has a basic obligation under Article 11 of the 
DSU  to make an objective assessment of the matter before it, including an objective assessment of the 
facts of the case.
4  Such assessment should include the facts, evidence and legal argument.  A panel 
should therefore exercise particular care in this resp ect, particularly where, as in this case, the dispute 
touches on matters that the complaining party do es not pursue.  The Panel should particularly 
distinguish between finding that the Parties agree with  respect to a particular fact, evidentiary matter 
or legal issue;  and the Panel itself making such finding.   
 6. Taking into account the above consideration,  the European Communities would like to make 
two remarks on the submissions of the Parties.    
7. First, the European Communities obser ves that the description made by Thailand
5 of the 
methodology applied by the United States in the pres ent case contains terminology which is incorrect 
in view of the interpretation followed by the Appe llate Body.  In particular, Thailand states that the 
dumping margin for an exporter was calculated "by summing up the amount of dumping  for each 
model" and that the USDOC "set to zero all negative margins  on individual models" ( emphasis 
added ).  However, the Appellate Body has already cl arified that dumping can be found to exist only 
"for the product under investigation as a whole, and cannot be found to exist for a product type, 
model, or category of that product" and that "the results  of model-specific comparisons are not  
margins of dumping within the meaning of Article  2.4.2, but rather constitute intermediate 
calculations that need to be taken into considera tion in the calculation of the margin of dumping for 
the product under consideration as a whole" ( emphasis added ).6  Consequently, the 
European Communities suggests that the Panel us e the proper terminology as indicated by the 
Appellate Body.7   
 8. Second, the European Communities observes that  panels and the Appella te Body have found 
the use of zeroing in original investigations  to be inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement in many disputes so far.
8  The European Communities not es that the Appellate Body 
Report in US – Stainless Steel  (Mexico)  addresses in general terms the relevance of previous panel 
and Appellate Body reports.9  In this respect, the final sentence of paragraph 160 refers to "an 
adjudicatory body" (in the singular), which seems to indicate that the phrase refers to the situation in 
                                                      
3 DSU , Article 3.2.   
4 Panel Report, Colombia – Indicative Prices , para. 181;  and Appellate Body Report, US – Gambling , 
para. 281 ("[W]hen a panel rules on a claim in the absence of evidence and supporting arguments, it acts 
inconsistently with its obligations under Article 11 of the DSU ").   
5 Thailand's First Written Submission, para. 10 (c onfirmed by the US First Written Submission, 
para. 2).   
6 Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from 
Canada ("US – Softwood Lumber V" ), paras 81 – 90;  see also Appellate Body Report, US – Continued Zeroing , 
para. 283, and Appellate Body Report, US – Stainless Steel (Mexico) , para. 89.   
7 See, e.g., Appellate Body Report, US – Zeroing (Japan) , footnote 13.   
8 See Appellate Body Report, EC – Bed Linen , para. 66;  Appellate Body Report, US – Softwood 
Lumber V , para. 117;  Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 124;  
Appellate Body Report, US – Zeroing (Japan) , para. 138;  and Appellate Body Report, US – Zeroing (EC) , 
para. 222.  In addition, model zeroing in original investigations has been found to be inconsistent with 
Article 2.4.2 of the Anti-Dumping Agreement by all panels that have examin ed that practice, including the 
panels in EC – Bed Linen , EC – Tube or Pipe Fittings , US – Softwood Lumber V , US – Zeroing (EC) , US – 
Zeroing (Japan) , and US – Shrimp (Ecuador) , US – Shrimp (Thailand)  and US – Continued Zeroing .   
9 Appellate Body Report, US – Stainless Steel (Mexico) , paras 157 – 162.   WT/DS383/R 
Page B-4  
 
  which it is the same body in both the previous case and the case to be decided.  That is, it refers to the 
situation in which a panel might be called upon to r esolve the same legal issu e that it has previously 
resolved; or the situation in which the Appellate Body might be called upon to resolve the same legal 
issue that it has already resolved.  We note that the phrase refers to "cogent reasons" as the basis for a 
change in view.  By contrast, the European Co mmunities notes that paragraph 161 of the Appellate 
Body Report in US – Stainless Steel (Mexico)  addresses the hierarchical relationship between panels 
and the Appellate Body.  It concludes that the re levance of clarification provided by the Appellate 
Body on issues of legal interpretation is not limited to the application of a particular provision in a 
specific case.  There is no express reference to "coge nt reasons".  Finally, in  paragraph 162 of the 
Appellate Body Report in US – Stainless Steel (Mexico)  the Appellate Body states that it was deeply 
concerned about the panel's decision to depart from well-established Appella te Body jurisprudence 
clarifying the interpretation of the same legal issues.    9. In view of this, the European Communiti es requests the Panel to carry out an objective 
assessment of the matter before it, taking into  account the well-established Appellate Body 
jurisprudence clarifying the interpre tation of the same legal issues.   
  WT/DS383/R 
 Page B-5 
 
 
  ANNEX B-2 
 
 
THIRD PARTY WRITTEN SUBMISSION 
OF JAPAN 
 
 
1. This dispute is one of the numerous di sputes brought to the WTO dispute settlement 
procedure concerning "zeroing" used in the US anti-dumping procedures.  Japan, as shown by its own recourse to the WTO dispute settlement procedure,  has an interest in the issue of the WTO-
consistency and implementation by the United States regarding "zeroing".   
 2. The basis of Thailand's claim is that the US Department of Commerce's use of "zeroing" 
when calculating the dumping margins for certain i nvestigated exporters in the investigation of 
polyethylene retail carrier bags from Thailand is inc onsistent with the United States' obligations under 
Article 2.4.2, first sentence, of the  Agreement of Implementation of Article VI of the GATT 1994  (Anti-
Dumping Agreement ).
1  Japan totally supports Thailand's clai m.  Japan shares the same recognition 
with both parties that in United States – Final Dumping Determination on Softwood Lumber From 
Canada  (US – Softwood Lumber Dumping ) the Appellate Body found that the use of "zeroing" in 
calculating margins of dumping on the basis of a comp arison of a weighted average normal value with 
a weighted average of prices of all comparable export transactions (the "weighted-average-to-weighted-average methodology") in investigations  was inconsistent with Article 2.4.2 of the Anti-
Dumping Agreement .
2  In this regard, Japan notes that th e United States does not contest that the 
measures identified in the panel request are incons istent with Article 2.4.2, first sentence, of Anti-
Dumping Agreement  on the grounds stated in US – Softwood Lumber Dumping.3   
 3. In light of the foregoing, Japan, noting that the parties to this dispute have reached an 
Agreement on Procedures to permit expe ditious resolution of this dispute
4, agrees with both parties 
that a prompt resolution be brought to this dispute.   Japan expects that the United States would take 
appropriate actions with respect to measures at is sue so that "prompt settlement of situations", as 
stated in Article 3.3 of Understanding on Rules and Procedures Governing the Settlement of Disputes , 
will be achieved.     
                                                     
 
1 WT/DS383/2 (10 March 2009), pp.2-3.   
2 Appellate Body Report, US – Softwood Lumber Dumping , paras. 62-117, Written submission of 
Thailand (Thailand FWS) para. 15, and First Written S ubmission of the United States (US FWS) para. 5.   
3 Thailand FWS, para. 17 and US FWS, para. 5.   
4 Thailand FWS, para. 7 and US FWS, para. 1.   WT/DS383/R 
Page B-6  
 
  ANNEX B-3 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
WRITTEN SUBMISSION 
OF ARGENTINA 
 
 
I. INTRODUCTION 
1. Argentina does not intend to discuss zeroing as applied in the specific case brought by 
Thailand.  Instead, it will focus on a more systemic  aspect, that is, the inconsistency of zeroing as 
such.  2. The practice and methodology applied by  the United States Department of 
Commerce (USDOC), commonly known as "zeroing", is inconsistent with the 
Anti-Dumping Agreement (hereinafter ADA).  Article 1 of the ADA stipulates that "[a]n 
anti-dumping measure shall be app lied only under circumstances pr ovided for in Article VI of 
GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions 
of this Agreement".  3. The zeroing methodology for calculating the margin of dumping during the investigation 
phase, by eliminating certain relevant transactions fr om the calculation, can lead to two situations:  
(a) artificial inflation of a margin of dumping;  or , in the worst-case scenario, (b) creation of a margin 
of dumping where there is none, contrary to Article VI of the GATT 1994 and the ADA.  
II. INCONSISTENCY WITH ARTICLE 2.4 OF THE ANTI-DUMPING AGREEMENT 
4. Article 2.4 of the ADA establishes that cal culation of the margin of dumping requires a 
"fair comparison" to be made between export price and normal value.  It also specifies how such a comparison is to be done and that due allowance is to  be made, in each individual case, for differences 
which affect "price comparability", providing alte rnatives for adjustment for the purposes of such 
comparison.  
5. As shown above, this provision lays down as a st andard that any investigating authority, when 
calculating margins of dumping in investigations, is required to do so on the basis of a fair 
comparison, regardless of the method it may decide to use under Article 2.4.2.  6. The ordinary meaning of the word " equitativo " (fair) in Spanish indicates that the comparison 
must be " justa ", "imparcial " or " ecuánime " (Diccionario de la Lengua Española , Espasa Calpe, 
Madrid, 2005), i.e. just, impartial or unprejudiced.  In other words, the comparison must not be distorted in such a way as to artificially increase the margin of dumping or to create positive margins 
where the result of the equation is negative.  The principle of "fair comparison" hence ensures that, regardless of the method used, the result of the calcu lation of the margin of dumping is a genuine one, 
and this implies taking into account all variables that may affect the final result. 
 7. The practice of setting the negative margins to zero consists of disregarding export prices that 
are higher than the domestic market prices of the enterprise in question.  Now, how can a fair 
comparison of normal value and export prices be made if some variables are omitted from the calculation of the margin of dumping, without justification of any kind? 
  WT/DS383/R 
 Page B-7 
 
 
  8. By omitting from the calculation results in case s where the margin of dumping is negative, 
the zeroing methodology produces a result that does not reflect reality, with margins of dumping created artificially on the basis of a selection of variables showing positive results.  9. Although the ADA does indeed allow adjust ments for the purpose of facilitating price 
comparability (where actual comparison is impossible) and makes no reference to zeroing, such 
adjustments cannot be made in the light of the zeroing methodology, for what is done in applying this method is to select some variables and dismiss othe r "comparable" ones, thus turning zeroing into a 
practice inconsistent with Article 2.4 of the ADA.  III. INCONSISTENCY WITH ARTICLE 2.4.2 OF THE ANTI-DUMPING AGREEMENT 
10. Both panels and the Appellate  Body have in several instances found the practice of zeroing to 
be inconsistent with Article 2.4.2 of the ADA.  11. Article 2.4.2 refers to the various methods av ailable to investigating authorities for calculating 
the margin of dumping.  It specifies that "[ s]ubject to the provisions governing fair comparison in 
paragraph 4, the existence of margins of dumping during the investigation phase shall normally be 
established on the basis of a compar ison of a weighted average normal value with a weighted average 
of prices of all
 comparable export transactions  or by a comparison of nor mal value and export prices 
on a transaction to transaction basis [thus providing the possibility of applying a weighted 
average/transaction under excepti onal circumstances method]". 
 
12. The aforementioned provision explains how domestic authorities must proceed in establishing "the existence of margins of dumping", that is, it explains how they must proceed in establishing that 
there is dumping.  
13. As can be inferred from this provision, co mparison for the purposes of calculating the 
"margin of dumping" in an investigation, rega rdless of the method used, must be based on "all" 
comparable transactions and not on the selection of certain models or transactions.  14. Argentina hence concurs with the arguments in paragraph 13 of Thailand's written submission 
that the terms "margins of dumping" and "all compar able export transactions" must be interpreted in 
an "integrated manner"
1, which leads to the conclusion that, where "an investigating authority has 
chosen to undertake multiple comparisons, the inv estigating authority necessarily has to take into 
account the results of all those comparisons in or der to establish margins of dumping for the product 
as a whole under Article 2.4.2".2 
 
15. Argentina therefore agrees with Thailand that  the zeroing methodology is inconsistent with 
Article 2.4.2, because it fails to take into account "all" comparable transactions as prescribed by the 
provision in question.  According to this methodol ogy, the "margin of dumping" is calculated by 
selecting some transactions and disregarding (by setti ng them to zero) those in which case the result is 
negative.  
                                                     
 
1 Appellate Body Report, WT/DS264/AB/R, adopted on 31 August 2004  ("Appellate Body Report,  
US – Softwood Lumber V "), paras. 86-103.  (Original footnote.) 
2 Ibid., para. 122.  (Original footnote.) WT/DS383/R 
Page B-8  
 
  IV. INCONSISTENCY WITH ARTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT 
AND ARTICLE VI:2 OF THE GATT 1994 
16. Article 9.3 of the ADA, read in conjuncti on with Article VI:2 of the GATT 1994, provides 
that anti-dumping duties levied in order to offset the effects of dumping may not exceed the margin of 
dumping in respect of such product. 
 
17. Article 9.3 stipulates that " [t]he amount of the anti-dumping duty shall be established in 
accordance with the provisions of Article 2 ". 
 18. The zeroing methodology, by not producing a resu lt that takes into account all the variables to 
be taken into consideration in a margin-of-dumping determination, ultimately implies the levying of 
anti-dumping duties in excess of the margin of dumpi ng, and is consequently inconsistent with 
Articles 9.3 of the ADA and VI:2 of the GATT 1994.  19. Nonetheless, Argentina wishes to make clear  that the imposition and collection of duties 
cannot be confused with the calculation of the ma rgin of dumping, which the implementing authority 
is required to make prior  to the imposition phase. 
 
V. CONCLUSION 
20. In view of the foregoing, Argentina considers that the zeroing methodology for calculating 
margins of dumping during the investigation phase is  inconsistent with Article 2.4.2 of the ADA. 
 
21. Accordingly, Argentina respectfully requests the Panel that the United States be asked to 
bring its measures into conformity with WTO law.  
 
 
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